Anderson v. Farquhar

BARNARD, P. J. This is an appeal from an order granting a motion for a new trial.

The plaintiff was driving an automobile along a street in the city of Redlands. The evidence is in conflict as to whether he was driving near the center of this street or near the right-hand curb. The defendant D. Glann Farquhar, driving a truck, approached from the plaintiff’s rear and passed on his left-hand side. There is evidence to the effect that the defendant cut in before he had completely passed the plaintiff's car in such a manner that the right rear wheel of the truck struck the left front wheel of plaintiff’s car, as a result of which the plaintiff lost control of his car and the same passed over the curb, striking a tree and causing the injuries complained of. A jury rendered a verdict in favor of the plaintiff in the sum of $400. The plaintiff moved for a new trial, which motion was granted and this appeal followed.

At the hearing of the motion for a new trial counsel for the plaintiff stated that his only serious contention was that the damages were wholly inadequate, that the evidence did not support the verdict in that respect, and that the language contained in one particular instruction was incorrect. The court took the motion under submission and, on June 17, 1936, the following minute order was entered: “Motion for new trial is granted.” On June 27, 1936, the defendant appealed from that order and on June 30, 1936, the court made the following order:

“Motion for new trial having heretofore been granted, it being the intention of the Court that said motion be granted on the grounds of inadequacy of damages awarded and that minute order granting same did not specify any particular grounds it is ordered that minute order be and the same is hereby amended to read as follows: ‘Motion granted on the grounds of insufficiency of the evidence to sustain the verdict.’ ”

The main point requiring consideration is whether the court had authority to make and enter the order of June 30, 1936. While the appellant concedes that courts may [394]correct clerical errors in their orders so as to make them speak the truth it is contended that the second order here made was an attempt to correct a judicial error, and, as such, was one which the court was without power to make. It is argued that there is nothing on the face of the second order to impeach the correctness of the first order, that the second order refers to the intention of the court on the date it was entered rather than at the time the original order was made, that the second order fails to state that any error had been made in entering the first order, and that this case necessarily falls within the rules laid down in Drinkhouse v. Van Ness, 202 Cal. 359 [260 Pac. 869].